Citation Nr: 20041007 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 16-52 616 DATE: June 16, 2020 ORDER Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder and major depressive disorder, prior to August 26, 2016 is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to an increased disability rating for service-connected left knee disability; currently with a 10 percent rating for left knee chondromalacia patella, and a 10 percent rating for left knee lateral instability from September 28, 2016 is remanded. Entitlement to an increased initial disability rating for service-connected right knee disability; currently with a 10 percent rating for right knee strain, and a 20 percent rating for right knee lateral instability from September 28, 2016 is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle sprain is remanded. FINDING OF FACT The Veteran’s service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes with corrected central visual acuity of 20/200 or less in the better eye or central visual acuity of more than 20/200 with a visual field defect of a degree specified by regulation, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or hips. CONCLUSION OF LAW The criteria for establishing eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment are not met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 2001 to April 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran previously requested to present testimony at a hearing before the Board. In a March 2020 letter, the Veteran’s duly appointed representative withdrew the Veteran’s request for a hearing. The request for a hearing is thus deemed withdrawn, and the Board may proceed with appellate review. Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment is denied. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or automobile adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for financial assistance in the purchase of a vehicle or other conveyance and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808. In chapter 39 of title 38 of the U.S. Code, Congress established the program authorizing funding for automobiles and adaptive equipment for veterans with certain service-connected disabilities. 38 U.S.C. §§ 3901-04. Pursuant to the authority established in 38 U.S.C. § 3902, the Secretary promulgated 38 C.F.R. § 3.808, which reiterates the § 3901(a) requirement that entitlement to automobile and adaptive equipment is warranted for "the loss or permanent loss of use” of one or both feet or one or both hands. 38 C.F.R. § 3.808(b)(i), (ii). The regulation does not further define the phrase "loss or permanent loss of use." Under the applicable eligibility criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, found in statutory § 3901 and regulatory § 3.808, the appellant must show that they lost their foot or hand or permanently lost the use of a foot or hand as a result of service-connected disability. It is noted that "loss of use" is used in several places in the rating schedule. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that “loss of use” was defined by the adjacent modifier, “such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, and had Congress or the Secretary of VA wished for such a definition to apply to these sections, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s), with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran has permanent loss of use. The Veteran is presently in receipt of VA service connection benefits for the following disabilities: ¬¬¬posttraumatic stress disorder and major depressive disorder with a 100 percent evaluation; right knee lateral instability with a 20 percent evaluation; chondromalacia patella left knee with a 10 percent evaluation; chronic sinusitis/rhinitis with a 10 percent evaluation; right knee strain with a 10 percent evaluation; left knee chondromalacia patella with a 10 percent evaluation; residuals of left ankle sprain with a 10 percent evaluation; and left knee lateral instability with a 10 percent evaluation. The Veteran has not been granted service connection benefits for disabilities involving visual impairment, burn injuries, amyotrophic lateral sclerosis, or disability of the hands and/or upper extremities. The Veteran has also not asserted, and the evidence of record does not otherwise demonstrate, that her service-connected lower extremity disabilities result in fixation of her knees or hips. Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is therefore unavailable on these bases. In considering the evidence of record, the Board finds that the Veteran’s service-connected disabilities of the left and right knee and left ankle do not result in such a severe degree of functional impairment as to approximate “loss of use” of a foot. Specifically, VA treatment records as recent as October 2018 indicate that the Veteran was seen at primary care with a normal gait and walking without assistance. Eligibility for the benefit sought in this case requires the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of her knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, she does not qualify for eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment under 38 C.F.R. § 3.808. As such, the claim must be denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The Veteran seeks entitlement to a TDIU. In a March 2020 letter, the Veteran’s attorney representative wrote that the Veteran has been unable to maintain substantial gainful employment since at least March 2014 as a result of her psychiatric symptoms. In the same letter, the attorney stated that the Veteran had worked during the 2014 through 2016 time period, but had been “fired from multiple jobs between 2014 and 2016” due to such symptoms. On the Veteran’s application for TDIU in October 2015, the Veteran indicated that she had worked one job (cellular sales) which ended in March 2014 and one job (roofing sales) between April 2014 and February 2015. While a response from the cellular sales employer indicated that the Veteran was terminated for poor performance, the response from the roofing company states that the “Veteran terminated [the] contract due to inability to meet contract requirements,” giving mental/physical illness as the cause for such inability. Given the representative’s statement that the Veteran was fired from multiple jobs between 2014 and 2016, it is unclear to the Board whether the Veteran had additional employment during this period. On remand, the Agency of Original Jurisdiction (AOJ) should contact the Veteran and request clarification as to her employment status during that time, and any jobs held more recently. In addition, the Board notes that while medical records and applications pertaining to the Veteran’s claim for Social Security Disability benefits have been received from the Social Security Administration (SSA), the decision itself is not of record. On remand, the AOJ should obtain a copy of any disability determination decisions for the Veteran from SSA. 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), prior to August 26, 2016 is remanded. Because the development requested above in connection with the claim for a TDIU could significantly impact a decision on the issue of entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD and MDD, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. 3. The claims of entitlement to service connection for a right ankle, right hip, and respiratory disability (claimed as bronchitis), entitlement to increased disability ratings for service-connected left knee disability and left ankle sprain, and entitlement to an increased initial disability rating for service-connected right knee disability are remanded. In the March 2020 letter, the Veteran’s attorney representative indicated that were the Veteran to receive a grant of either a 100 percent disability rating or a TDIU, the remaining issues on appeal would be withdrawn. Therefore, because a decision on the remanded issues of entitlement to a higher initial disability rating for service-connected PTSD and MDD and entitlment to a TDIU could significantly impact a decision on the other remaining issues, they are inextricably intertwined. A remand of these other claims is therefore also needed. The matters are REMANDED for the following action: 1. Contact the Veteran and request that she provide VA with clarification and information (including the name and address of any employer, type of work, hours worked per week, etc.) regarding her employment status and any jobs held since 2014. Also ask the Veteran to submit evidence that may substantiate her attorney’s assertion regarding marginal employment (e.g. federal or states tax returns, SSA earning statements, etc.). 2. Obtain a copy of any decision/determination issued by the Social Security Administration concerning the Veteran’s entitlement to SSA disability benefits. Document all requests for information as well as all responses in the claims file. 3. Thereafter, conduct any additional development deemed necessary in light of the expanded record, then readjudicate the claims remaining on appeal. If any of the benefits are not granted to the Veteran’s satisfaction, issue the Veteran and her representative a Supplemental Statement of the Case and allow them an opportunity to respond before returning the case to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.